The fight for ENDA: Think you can’t be fired for being gay? Think again

Same-sex marriage supporters shout slogans in front of the US Supreme Court on March 26, 2013 in Washington, DC. The US Supreme Court takes up the...

Jewel Samad/AFP/Getty Images

Shari Hutchinson’s professional future at the Child Support Enforcement Agency in Cuyahoga County, Ohio, may have ended the moment she set up her desk.

Like many of her co-workers, Hutchinson wanted a picture of her significant other at the office, so she placed one of her partner, Diane, at her workstation along with all her other things. Shortly after her first day of work in 2002, Hutchinson brought Diane into the office to meet her co-workers and her supervisor. She also listed Diane as her emergency contact on agency forms, stating that her relationship was “partner” or “domestic partner.”

It was this not uncommon behavior, Hutchinson believes, that may have doomed her career at the agency. In a federal lawsuit filed against Cuyahoga County in 2008, Hutchinson claimed that the county passed her over for dozens of promotions in favor of less qualified straight people–a practice that neither Ohio law, nor federal law makes illegal.

That could all change, however, with the Employment Non-Discrimination Act (ENDA,) introduced on Thursday by a bipartisan group of lawmakers in both the Senate and the House of Representatives. Modeled after Title VII of the 1964 Civil Rights Act, the bill seeks to create a national ban on workplace discrimination against LGBT Americans in the same way that federal law already prohibits employment discrimination based on religion, race, gender, national origin, or disability. The bill proposes that employers cannot fire, refuse to hire, give unequal pay to, or treat in an otherwise discriminatory manner, like allowing a hostile work environment, any employee based on sexual orientation or gender identity.

Currently, there is no federal law against LGBT workplace discrimination, and it is perfectly legal to fire someone for being gay in 29 states and for being transgender in 34 states.

Over the years, Republicans have largely opposed versions of ENDA for various reasons ranging from religious concerns to false assumptions that the law already exists. Though ENDA does include a exemption allowing some religious organizations to make employment decisions based on sexual orientation or gender identity, opponents argue that it is too narrow in scope.

“The legal protections offered under the Employment Non-Discrimination Act are desperately needed by LGBT Americans from east to west and from north to south,” said Heather Cronk, co-director of GetEQUAL, a national LGBT advocacy organization, in a statement. “Every day, I hear stories from folks working two and three jobs just to get by, constantly fearful that their employers might find out that they’re gay or transgender. That kind of stress diminishes productivity and workplace stability, but it also strikes at the heart of our own human dignity. This is a problem that needs solving, and now is the time to solve it.”

Not only do most Americans support federal protection for LGBT employees, Cronk noted in an interview with msnbc.com Wednesday, but an overwhelming majority mistakenly believe it already exists (like Rep. Marchant.) In a Center for American Progress poll, nearly three-fourths—73%—of the American public said they supported protecting LGBT employees from workplace discrimination. The survey also found that nine in 10 voters incorrectly believed that Congress had already passed a clear, federal law prohibiting employers from discriminating against employees based on sexual orientation or gender identity.

But in fact, no such law exists–the Senate hasn’t even voted on a workplace discrimination ban based on sexual orientation since 1996, when a similar measure failed by only one vote. A version of the law without transgender provisions passed the House in 2007, but died in the upper chamber.

“It’s absolutely absurd,” said Tico Almeida, president of Freedom to Work, a national organization committed to banning workplace harassment and career discrimination against LGBT employees.

“The Democrats really do deserve some criticism,” he said of their failure to put the bill to a vote in the Senate for 17 years, eight of which were under Democratic control. However, he added, “I do think Harry Reid is going to do it this year.”

If the Senate does take up the measure in 2013, Almeida believes it stands a good chance of getting the 60 votes needed to break an expected filibuster. Two critical factors in particular put ENDA in a more favorable position than ever before to pass the upper house.

One is Sen. Tammy Baldwin, the newly elected Democrat from Wisconsin and the nation’s first openly gay U.S. senator. Advocates are hopeful she will campaign hard for the bill’s passage based on her prior support for the measure as a House member.

“I know she’s going to fight,” said Almeida.

The other factor working in ENDA’s favor might be Sen. Rob Portman, R-Ohio. Portman recently reversed his opposition to same-sex marriage last month, two years after his son told him he was gay. “[Portman’s] son is about to graduate from Yale, and he can legally be fired for being gay in Ohio right now,” said Almeida. “I can’t imagine Rob Portman would vote against a bill that would prevent that from happening to his son.”

But before his public reversal on same-sex marriage, Sen. Portman’s position on ENDA was foggy. Last June, the Ohio senator said in an interview with Think Progress that he opposed the bill because it “would make it more difficult for employers to feel comfortable.” But that same month, Shari Hutchinson–who won a six-figure settlement in 2011 from her lawsuit against Cuyahoga County–went to Washington, D.C., as part of Freedom to Work’s Speakers Bureau to lobby for the measure. She met privately with Portman’s staff and left feeling optimistic about his support.

“I am an Ohio voter and I met with Sen. Portman’s staff last month to tell them how I faced anti-lesbian slurs at work in Cleveland and how I was repeatedly denied promotions even when the heterosexual candidate they selected instead of me had failed the qualifying exam for that promotion,” Hutchinson told theWashington Blade. “Mr. Portman’s staff was very attentive, respectful and concerned to hear that anti-LGBT workplace harassment and discrimination still goes on in Ohio. I urged them to support ENDA and I am hopeful Mr. Portman might do the right thing.”

While the Harvard study showed that southern and Midwestern states without any LGBT protections were the worst offenders, Heather Cronk said she’s also heard horrific discrimination stories from the 15 states that do ban job discrimination based on sexual orientation or gender identity. “That’s why there needs to be a federal law,” she said. “The power of a federal law is psychological…It gives folks a clear pathway,” outlining what counts as discrimination at work and what does not.

Cronk is hopeful that ENDA will get a vote in the Senate this year, especially because longtime supporter Sen. Tom Harkin, D-Iowa, won’t be seeking reelection in 2014. “I know Sen. Harkin wants this to go through his Committee on Health, Education, Labor, and Pensions,” she said on Wednesday. “He’s retiring, so he sees this as unfinished business.”

The real battle, Cronk expects, will come in the House, where a Republican majority holds decidedly less enthusiasm for LGBT rights. Last week, Speaker Boehner expressed little interest in advancing ENDA, telling theWashington Blade: “I haven’t seen the bill. I haven’t thought much about it.”

Now that the White House has indicated President Obama won’t be signing an executive order prohibiting federal contractors from discriminating against LGBT workers, advocates will have to push that much harder to pass ENDA through a legislative approach. “We’re not opposed to harder tactics,” said Cronk. “If it comes down to it, we will use the same tactics we used for repealing Don’t Ask, Don’t Tell in 2010,” when 13 veterans and GetEQUAL advocates were arrested after handcuffing themselves to the White House fence in protest. “We’ll get the votes however we need to get them,” she said.

Cronk and Almeida are holding a panel on workplace discrimination on Thursday along with other LGBT advocates as the bill is introduced in the Senate by Sens. Jeff Merkley, D-Ore., and Mark Kirk, R-Ill.–the second Republican senator to publicly voice his support for same-sex marriage. Sens. Jared Polis, D-Colo., and Ileana Ros-Lehtinen, R-Fla., introduced the measure in the House.

Other panelists included Lisa Mottet, transgender civil rights project director at the National Gay & Lesbian Task Force; Colleen Kutney, policy fellow at the National Gay & Lesbian Chamber of Commerce; Dr. Dana Beyer, executive director of Gender Rights Maryland; and Liz Abzug, executive director of the Bella Abzug Leadership Institute and the daughter of late Congresswoman Bella Abzug, who originally proposed LGBT workplace discrimination legislation in 1974. Four decades later, Congress has still not approved it.

“Almost 40 years after my mother boldly and courageously introduced the Equality Act–the first bill ever introduced in the U.S. Congress to prevent discrimination against LGBT Americans and to secure full equality under federal law–the time has now come for the Congress to approve ENDA,” said Abzug in a statement. “It is time for LGBT Americans to be treated equally under the law, with legal protections against all forms of discrimination and with the legal standing to pursue remedies through the judicial system when those protections are violated.”